MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      
	   
	BOARD DATE:           9 May 2002                   
	DOCKET NUMBER:   AR2001063602

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.

	Mr. Carl W. S. Chun		Director	
	Mr. Edmund P. Mercanti		Analyst	

  The following members, a quorum, were present:

	Ms. Joann H. Langston		Chairperson	
	Mr. John N. Slone		Member	
	Mr. Terry L. Placek		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether to authorize a formal hearing, recommend that the records be corrected without a formal hearing, or to deny the application without a formal hearing if it is determined that insufficient relevant evidence has been presented to demonstrate the existence of probable material error or injustice.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

	The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  That his sergeant major rank be reinstated.

APPLICANT STATES:  That he believes the revocation of his promotion orders was an injustice.  He provides correspondence pertaining to the revocation of his promotion orders which he believes will show that the revocation of his promotion orders was an injustice.

In support of his application he submits a letter from his commander in which the commander states that it is his opinion that the revocation of the applicant’s promotion order was unwarranted and resulted from administrative misunderstanding and misapplication of Army regulations.  The applicant’s commander gives his rationale for his statement and then attests to the outstanding duty performance of the applicant.

EVIDENCE OF RECORD:  The applicant's military records show:

On 28 February 1995, orders were issued promoting the applicant, a reservist assigned to a troop program unit, to the rank of sergeant major.  The applicant’s effective date of promotion and date of rank were established as 1 March 1995.

On 1 April 1996, the applicant began the nonresident Sergeants Major Course.  On 14 November 1996, the applicant was disenrolled from the course due to his failure to maintain satisfactory academic standards.

On 2 February 1998, in response to an inquiry from the applicant’s command, the Army Reserve Command (USARC) stated that prior to the 17 January 1998 effective date of Change 4 to Army Regulation (AR) 140-158, the only guidance provided by the Department of the Army Deputy Chief of Staff for Personnel (DCSPER) on reservists promoted to sergeant major who failed the Sergeant Major Course was to revoke their promotion orders.  However, the USARC stated that the DCSPER’s guidance was insufficient for a number of reasons, and informed the applicant’s command that it was their decision whether to revoke the applicant’s promotion order or not.

The applicant’s commander recommended that the applicant’s promotion order not be revoked, citing the applicant’s exemplary duty performance and his value to the command as the basis for his recommendation.

The Staff Supervisory Administrator (SSA), the highest ranking civilian in a reserve command, signing on behalf of his brigade commander, recommended that the applicant’s promotion orders be revoked.  The SSA stated that the applicant fully understood his requirement to complete the SGM Academy to maintain his promotion to sergeant major.  The SSA opined that if the applicant’s promotion order was left intact, it would establish “the wrong precedence to all enlisted personnel who were promoted prior to the new change to AR 140-158.”  The SSA directed that the applicant’s service as a sergeant major be classified as defacto so that he would retain the pay he received at that grade.

On 6 April 1998 the applicant’s promotion order to sergeant major was revoked.

Army Regulation 140-158, effective 1 October 1994, paragraph 1-27.2, states that effective 1 October 1993 reservists being promoted to sergeant major must be a graduate of the SGM Academy.  Paragraph 1.8 states that all promotion orders will contain the statement “Promotion is not valid and will not be effective if the soldier is not in a promotable status on the effective date of the promotion.”  

Change 4 to this regulation, dated 17 December 1997, added a chapter which deals with the relationship between promotions and the noncommissioned officer education system.  Paragraph 8-18 of this regulation provides the authority to conditionally promote a reservist to sergeant major, contingent on that reservist’s completion of the SGM Academy.  This paragraph specifies that if a reservist is conditionally promoted to SGM and fails to complete the SGM Academy within a prescribed period of time, the reservist is to be reduced to pay grade E-8.

DISCUSSION:  Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record and applicable law and regulations, it is concluded:

1.  The regulation published five months prior to the applicant’s promotion required completion of the SGM Academy for promotion to sergeant major.  However, the effective date of that requirement was a year and five months prior to the applicant’s promotion.

2.  Since there were no provisions to conditionally promote a reservist to sergeant major at the time of the applicant’s promotion, and since the applicant had not completed the SGM Academy, he never should have been promoted.

3.  The USARC’s confusion on whether the applicant’s promotion orders should be revoked appears to have resulted from the fact that there were no provisions in the regulation in effect at the time of the applicant’s promotion to revoke orders on reservists who were given conditional promotions.  However, the reason there were no provisions to revoke orders on conditional promotions was that conditional promotions were not authorized at the time of the applicant’s promotion.    

4.  The statements attesting to the applicant’s exemplary performance of duty and worth to his command are commendable but are not germane to this case.  The Department of the Army has decreed that all reserve sergeant majors complete the SGM Academy.  There are no exceptions contained in the regulation.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

DETERMINATION:  The applicant has failed to submit sufficient relevant evidence to demonstrate the existence of probable error or injustice.

BOARD VOTE:

________  ________  ________  GRANT

________  ________  ________  GRANT FORMAL HEARING

__jal____  ____tlp __  ____jns _  DENY APPLICATION

		    Carl W. S. Chun
		    Director, Army Board for Correction
    of Military Records

INDEX

CASE ID	AR2001063602	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020509	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR .  .  .  .  .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	131.00	
2.		
3.		
4.		
5.		
6.